agreement in which the insured undertook to name his first
spouse as a beneficiary irrevocably. In Bielny, the separation
agreement required the insured to name the children of the first
marriage as irrevocable beneficiaries. In Fraser v. Fraser, the
trial judge found on the facts that the terms of the separation
agreement requiring the insured to maintain the plaintiff as
beneficiary were tantamount to an irrevocable designation.

[105] Whether these authorities need to be re-examined in
light of Soulos, as suggested in some authorities — see, for
example, Love v. Love, [2013] S.J. No. 147, 2013 SKCA 31,
359 D.L.R. (4th) 504 — is not something that need be determined here. As I have concluded above, it was not open to the
application judge on this record to hold that the oral agreement
between the Moores constituted an equitable assignment,
or that it was tantamount to an irrevocable beneficiary
designation.

[106] Absent those considerations, I do not see anything in the
circumstances of this case that would place it in some other
“good conscience” category not caught with the rubric of either
wrongful act (not asserted here) or unjust enrichment. For that
reason, I do not see the need to resolve the foregoing debate
about whether Soulos has restricted the categories for imposing
a remedial constructive trust to unjust enrichment or wrongful
act or whether there remains some additional “good conscience”
basis.

[107] Simply because wrongful act is not asserted, and unjust
enrichment is unsuccessful, does not mean that some other
“good conscience” basis must exist on the facts. To engage in
such an exercise, on this record at least, it seems to me, would
undermine the rationale for creation of the juristic reason
element in the first place.

Disposition

[108] For the above reasons, I would allow the appeal and set
aside the judgment below. With the exception of the disposition
in the following paragraph, I would dismiss the application and
order that the proceeds of the policy of insurance on the life of
Lawrence Anthony Moore, and accrued interest, be paid out of
court to the appellant.